Change is part of history

Sunday

President Barack Obama’s latest nominee to the U.S. Supreme Court is still making the rounds on Capitol Hill as the Senate prepares for confirmation hearings.

U.S. Solicitor General Elena Kagan, by all accounts an outstanding legal mind, is being questioned by some for never having been a judge, and her conservative foes voice the complaint that she will not be a “strict constructionist” on the Constitution.

By “strict constructionist,” the detractors mean someone who, in their opinion, will interpret our sacred Constitution just as the Founding Fathers “intended.”

Because you are going to hear a lot about that revered document in the coming weeks, I think it is important to note that just as the Founders were imperfect, so was the manuscript they produced and adopted as the foundation of our democratic republic.

I thought about this more as I heard a radio commentator railing against the late Supreme Court Justice Thurgood Marshall who, in a speech in 1987, was making this same point much more eloquently than I.

When I reread that speech the other day, it occurred to me that every American — especially those senators who will sit in judgment of Kagan, a woman who once clerked for Marshall — ought to be familiar with what Marshall had to say during the 200th anniversary of the Constitution.

As the country prepared for a three-year celebration of that event, Marshall reminded attendees at a law conference in Hawaii that, although the anniversary would prompt patriotic feelings and “proud declarations of wisdom, foresight and a sense of justice shared by the Framers,” there was a “tendency for the celebration to oversimplify and overlook the many other events that have been instrumental to our achievements.”

He went on, “I do not believe that the meaning of the Constitution was forever ‘fixed’ at the Philadelphia Convention. Nor do I find the wisdom, foresight and sense of justice exhibited by the Framers particularly profound. To the contrary, the government they devised was defective from the start. ... When contemporary Americans cite ‘The Constitution,’ they invoke a concept that is vastly different from what the Framers barely began to construct.”

Sound arrogant? Out-of-touch? Un-American? Well, Marshall explained that the first words in the preamble to the document, “We the people,” did not include the majority of Americans. It specifically said it applied to “the whole Number of free Persons.” But on the basic right to vote, he pointed out, the Framers excluded slaves, and it would be 135 years before women gained that right.

In 1857, the Dred Scott decision by the Supreme Court declared black people “property” and “of an inferior order, and altogether unfit to associate with the white race ...; and so far inferior, that they had no rights which the white man was bound to respect.”

Referring to that writing by Chief Justice Roger Taney, Marshall said, “And, so, nearly seven decades after the Constitutional Convention, the Supreme Court reaffirmed the prevailing opinion of the Framers regarding the rights of Negroes in America.”

He noted that although the Union survived the Civil War, the original Constitution didn’t.

“In its place arose a new, more promising basis for justice and equality, the 14th Amendment, ensuring protection of life, liberty and property of all persons against deprivations without due process, and guaranteeing equal protection of laws. And yet almost another century would pass before any significant recognition was obtained of the rights of black Americans to share equally even in such basic opportunities as education, housing and employment.”

He said, “What is striking is the role legal principles have played ... in determining the condition of Negroes. They were enslaved by law, emancipated by law, disenfranchised and segregated by law; and finally, they have begun to win equality by law.”

Marshall concluded by saying, “I plan to celebrate the bicentennial of the Constitution as a living document, including the Bill of Rights and the other amendments protecting individual freedoms and human rights.”

In addition to drafting and adopting the Constitution, the next-best thing the Framers did was provide a mechanism to change it. We should keep this in mind always, but especially as we move forward with confirming a new Supreme Court justice.

Never miss a story

Choose the plan that's right for you.
Digital access or digital and print delivery.